Luyombya Denis v Attorney General (Complaint UHRC 183 of 2006) [2019] UGHRC 11 (13 May 2019)

# THE REPUBLIC OF UGANDA THE UGANDA HUMAN RIGHTS COMMISSION **HOLDEN AT KAMPALA** COMPLAINT NO. UHRC/183/2006

LUYOMBYA DENIS:::::::::::::::::::::::::::::::::::: AND

ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::

## [BEFORE DR. PATRICIA ACHAN OKIRIA (MRS)]

#### **DECISION**

This is a complaint brought by Luyombya Denis against the Attorney General in which he alleges the violation of his right to Freedom from Torture, Cruel, Inhuman and Degrading Treatment or Punishment and deprivation of ownership of property. The complainant alleges that on 14<sup>th</sup> September, 2006, while at Industrial Zone in Kawempe, a Special Police Constable (SPC) a one Sebalu ordered him to remove his shoes because they resembled those of soldiers. That he ran away but the police officer pursued him until he caught up with him and ordered him to crawl out of his hideout and squat while raising his hands up. He alleges that the officer shot him three bullets in his right palm, another in his left palm and five on his shoulders. That the police officer then took his shoes and mobile phone before taking him to Kawempe Police Station from where he was accused of grabbing a gun from SPC Sebalu. That he was later taken to Mulago Hospital where he was admitted and received medical attention. The respondent was not represented so he neither denied nor accepted the above accusations.

### **Issues:**

The issues for determination before this tribunal are:

- Whether the respondent's servants violated the complainant's right to $(i)$ freedom from torture, cruel, inhuman and degrading treatment. - Whether the respondent's agents deprived the complainant of his $(ii)$ right to ownership of property. - Whether the respondent (Attorney General) is liable for the violation $(iii)$ - Whether the complainant is entitled to the remedies sought. $(iv)$

Before resolving the above issues, I wish to state that the following; First and foremost, this matter was solely heard by the late Hon Rtd Justice Gideon Tinyinondi. The decision is therefore based on the record of proceedings prepared by him.

Secondly, this matter proceeded exparte since the respondent never appeared before the tribunal despite the fact that he was served and there was proof to that effect. Therefore, this matter was never defended although the written submissions by Commission Counsel were prepared on behalf of the complainant and served and received by the respondent on 4<sup>th</sup> October, 2016.

However, I note that this did not remove the complainant's responsibility to prove his case before the Tribunal.

Under S.101(1) of the Evidence Act Cap 6, it is stated that "Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he or she asserts must prove that those facts exist."

Under S.102 of the Evidence Act, it is stated that "The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side."

I now turn to the issues:

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1. Whether the respondent's servants violated the complainant's right to protection against torture, cruel, inhuman and degrading treatment.

Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) gives an internationally agreed legal definition of torture by stating that;

"Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions".

Considering National Instruments, the Prevention and Prohibition of Torture Act, 2012 under section 3 defines 'torture' as;

"any act or omission, by which severe pain or suffering whether physical or mental, is intentionally inflicted on a person by or at the instigation of or with the consent or acquiescence of any person whether a public official or other person acting in an official or private capacity for such purposes as obtaining information or a confession from the person or any other person, punishing that person for an act he or she or any other person has committed, or is suspected of having committed or of planning to commit; or intimidating or coercing the person or any other person to do, or to refrain from doing, any act".

The Constitution of the Republic of Uganda under Article 24 clearly prohibits the violation of an individual's right to freedom from torture or cruel, inhuman or degrading treatment or punishment.

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The International Covenant on Civil and Political Rights (ICCPR) 1996, which prohibits torture or cruel, inhuman and degrading treatment or punishment under Article 7, which states; "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

The United Nations' Universal Declaration of Human Rights has evolved into treaty obligations through the International Covenant on Civil and Political Rights of 1966."Article 7 of the Civil and Political Covenant re-echoes clearly Article 3 of the Universal Declaration, and includes another prohibition deriving from the trial of the Nazi doctors at Nuremberg". Article 7 of the Covenant provides that No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. The Covenant states that while some rights may be the subject of derogation during a "time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed," the provisions of Article 7 prohibiting torture and ill-treatment are not subject to derogation." In addition to Article 7's prohibition against torture and ill treatment, Article 10 of the Covenant requires that "all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."

Similarly, the Universal Declaration of Human Rights (UDHR) 1948 states under Article 5 that; "No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

Although torture is absolutely prohibited by the Constitution and other relevant laws of Uganda, there was no definition of torture in Uganda until 18<sup>th</sup> September, 2012 upon the commencement of the Prevention and Prohibition of Torture Act, 2012. However, since the law cannot be applied retrospectively, the only definition that will be adopted in this matter is the one provided in the UNCAT cited above.

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The actions committed against the complainant would constitute "torture" if the same were proved taking into account the definition of torture as provided under Article 1 of the CAT.

The Convention against Torture imposes certain obligations to prevent and enforce the prohibition against torture and cruel, inhuman, or degrading treatment. Among other obligations, State parties that have adopted the Convention against Torture must ensure that "any statement which is established to have been made as a result of torture ... not be invoked as evidence in any proceedings." As with the Covenant, the Convention against Torture provides that the prohibition against torture is a non derogable obligation, and no order from a superior officer or a public authority may be invoked as a justification of torture." Article 1 of the Convention against Torture is widely referenced by international bodies and has been deemed the de facto "first port of call" for those seeking a definition of torture."

The Uganda Human Rights Commission Tribunal has subsequently adopted an evolving standard for determining when acts constitute torture, a standard that takes into account present-day conditions and human rights norms. This Tribunal emphasizes that the prohibition against torture enshrines one of the most fundamental values of democratic societies that must be respected even in the most difficult circumstances, the Tribunal was established to protect human rights and fundamental liberties, which "correspondingly and inevitably requires greater firmness in addressing breaches of the fundamental values of democratic societies." I observe that the 1995 Constitution of the republic of Uganda is a "living document," and I would like to express that "certain acts which were classified in the past as 'inhuman and degrading treatment' as opposed to 'torture' could be classified differently in the future." In making a determination regarding whether torture or cruel, inhuman, or degrading treatment has occurred, the Tribunal has considered;

a) The nature of the act or acts involved;

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b) The severity of the physical and/or mental harm suffered as a result of the acts:

c) The purpose of the actor, evidence on the purpose and Intent of torture.

d) The official status and/or individual responsibility of the actor.

International human rights scholars have also analysed these elements and have offered commentary on how they should be applied to distinguish torture and inhuman or degrading conduct. These four elements, and the jurisprudence that has interpreted them, are discussed more below in the evaluation of evidence.

I shall evaluate the evidence adduced in order to determine whether the allegations by the complainant amounted to the level of severity that constitutes what would be categorized as torture or whether the effects of the same actions amount to what is categorized as cruel, inhuman or degrading treatment or punishment.

Once the above elements are proved against the Respondent's agents, then it can be established that the Complainant was indeed subjected to torture contrary to the laws of Uganda.

In Fred Tumuramye -and- Attorney General UHRC NO. 264 of 1999, Commissioner Aliro Omara outlined the central contours of torture as stated in the CAT to bear the following: " any act by which severe pain or suffering, whether physical or mental is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed or intimidating or coercing him or a third person or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

#### **Evidence**

It's the Complainant's testimony that on 14<sup>th</sup> September, 2006, while at home having a meal with Divens Tusubira and Isma Mukiibi a Special Police Constable (SPC) in uniform arrived. That he told him that the shoes he was putting on were for soldiers but he informed him that he had bought them from Owino market. He further testified that the SPC ordered him to give him money to which he replied that he never had money.

### (a) Evidence on the Nature of the Act

The UN Special Rapporteur's 1986 report describes the conditions under which torture often occurs, including practices such as incommunicado detention and states of emergency, where "preventative detention" or detention without procedural safeguards to protect the rights of detainees has led to circumstances where torture can become psychologically and institutionally accepted." The Special Rapporteur's report includes a listing of the types of actions that constitute torture. Some of the acts on the list are acts of commission, such as beating, burning, suspension, suffocation, such as by near-drowning in water, and exposure to excessive light or noise. There are also acts of omission, such as prolonged denial of rest, sleep, food, sufficient hygiene, or medical assistance, and prolonged isolation and sensory deprivation. The African Commission on Human and Peoples' Rights and the United Nations Human Rights Committee have rendered decisions in similar cases involving findings of torture and/or cruel, inhuman, or degrading treatment or punishment. Case-by-case determinations have repeatedly emphasized the importance of considering the totality of the circumstances and the cumulative effects of treatment and/or conditions in reaching a conclusion regarding whether acts violate international law.

In this case the Complainant explains that;

"He then caught me by the waist and tried to remove my shoes. I ran away from him. He followed me while firing bullets. I crossed the road to Sebiina Zone in Kalerwe and went to the Chairman of the Zone. I entered the LCI Chairman's house. The distance is like ½ a mile away. He fired at the window and called me out. I came out raising my hands. He shot the first bullet in the left hand and 3 bullets in the right arm and another bullet grazed the shoulder".

He also stated that after being shot, he was taken by the police officer to Mulago Hospital while unconscious. That he was on his sick bed with cuffs on the legs while his whole body was swollen. He also stated that he could not remember how long he spent in hospital but whenever he tries to do a lot of work, his right hand pains again.

The complainant's eye witness (CW2) Tusubira Divens testified that on a date he could not recall but in October, 2006, while in a hotel eating with the Complainant and Isma Mukiibi three police officers armed with guns arrived and asked them for money.

## He added as follows;

"We told them we did not have money and in any case why did they want it? The Complainant was putting on shoes which resemble those of the army. One He called the Complainant and the of them called Sebalu was armed. Complainant tried to escape from him and ran away. The Complainant crossed the road and Sebalu started shooting in the air. The Complainant entered somebody's house. When Sebalu arrived at the house, he ordered the complainant to come out. He came out and Sebalu ordered him to raise his hands. He shot him in the hands and shoulder".

He further testified that after shooting the complainant, the local people and police lifted the Complainant to a pickup and he was taken to Kawempe. That he next saw the complainant the following day at Mulago Hospital. That he found Luyombya on a bed with one hand in bandage and another handcuffed to the bed.

The complainant's testimony was further corroborated by the evidence of (CW3) Mukiibi Ismail who was also with the complainant on the fateful day and he stated that sometime in October of a year he could not recall, he was seated at a hotel with Divens and Dennis Luyombya eating at Bwaise Industrial Zone. That three police officers dressed in uniform and armed with three guns went there and asked them for money.

That the Complainant was putting on shoes that they tried to remove from him and Luyombya escaped from them and ran away. That they ran after him while shooting in the air and the Complainant crossed Northern Bypass to Sebiina Zone. That he also followed them and by the time he reached, they had already shot at him and he was then taken to police.

He further stated that he next saw the Complainant after one week at Mulago Hospital with one hand handcuffed to the bed.

More so, the complainant called an expert witness a one Dr. Barungi Thaddeus a Police Surgeon and a holder of MBCHB from Makerere University obtained in 1978, MMED (also obtained from Makerere in 1995). He also possessed a Post-graduate Diploma in Forensic Medicine from the College of Medicine South Africa in 2004 and was a retired Commissioner of Police and currently a Lecturer at Makerere College of Sciences. The tribunal however notes that during the testimony of this witness, he stated that he could not interpret the medical reports before him since the Photostat was not clear. He also stated that he was not the one who attended to the complainant but instead it was his co-worker who had since left and he wondered how his name appeared on the report. His testimony and the medical report were therefore expunged from the record of proceedings.

# The Tribunal's decision on the Merits.

The Tribunal is called upon to determine whether the actions of the Respondents as described above constitute a violation of Articles 24 & 44 of the degrading treatment or punishment. To constitute torture, according to these tribunals, conduct must result in severe physical or mental pain or suffering. Indeed, for some, "the seriousness of the pain or suffering sets torture apart from other forms of mistreatment." Severe harm may be either physical or mental, and in many cases, both types of harm are alleged and supported by medical or other corroborating evidence. Typical findings of the harm caused by acts of torture refer to evidence of "a large number of serious lesions and bruises," and include findings that the detainee suffered "a permanent state of physical pain and anxiety," owing to the detainee's uncertainty about his fate and to the blows repeatedly inflicted upon him during the interrogation sessions.

Article 24 of the Constitution provides as follows:

"No person shall be subjected to any form of torture or cruel, inhuman and degrading treatment or punishment."

a non degrogable right for which no $one$ in whatever Torture is conditions/circumstances can justify as provided for under Article 44 of the Constitution of the Republic of Uganda. The complainant and his witnesses were consistent with each other as regards the shooting carried out by the respondent's agent. This is an act which was carried out with malice on the part of the respondent's agent.

The Tribunal infers intention on the part of the respondent's agent since according to the complainant and his witnesses, he had surrendered as he had stopped and put his hands in the air. Why then shot a harmless civilian who never had bad intentions whatsoever and had already explained to the officer that he had bought the shoes from Owino market.

In cases involving a lack of appropriate medical treatment, for example, the deterioration of the detainee's health is often cited in support of a finding that the treatment at issue is inhuman or degrading. Cruel and inhuman treatment

has also included both "psychologically exhausting regimes" and "psychological violence."

In evaluating the extent and degree of harm, this tribunal will therefore consider personal circumstances and the degree of vulnerability of the person who is detained. The Tribunal considers that this treatment and the surrounding circumstances were of such a serious and cruel nature that it attained the threshold of severity as to amount to torture.

The Tribunal however notes that the complainant's witness i.e. the expert witness failed to interpret the medical report which led the same being expunged from the record of proceedings. However, this did not take away the fact of the shooting which caused severe pain and suffering on the part of the victim. Reference is made to the case of Fred Kainamura & Others Vs. Attorney General & Others 1994 KALR 92 where the complainants pleaded among other issues that they were tortured during detention but medical evidence was not adduced to substantiate the allegations of torture. Okello J held that; "It is true that there is no medical evidence to support the evidence of assault submitted by Turyasingura. But it is not a requirement of the law that every allegation of assault must be proved by medical evidence. You do not need medical evidence to prove that he was boxed and kicked. That would not be the case. Medical evidence helps prove the gravity of the assault."

#### Evidence on the Purpose and Intent of Torture $(c)$

An actor's purpose or intent often will affect whether conduct is deemed torture or cruel, inhuman, or degrading conduct. The Special Rapporteur of the U. N. Commission on Human Rights has indicated that "the requirement of specific purpose seems to be the most decisive criterion which distinguishes torture from cruel or inhuman treatment." In order to constitute torture, an act must have been committed deliberately and for a prohibited purpose.

The requirement of a "prohibited" purpose does not mean that the purpose in question must be illegitimate. At least one of the purposes listed in the Convention Against Torture like obtaining information or a confession can be legitimate if the appropriate means are used to achieve the purpose. Nonetheless, the purpose requirement sets torture apart from other forms of ill treatment.

In considering whether the evidence is sufficient to establish a prohibited purpose, international bodies do not require proof that a prohibited purpose is the exclusive or even predominant motivation. "It is sufficient that a prohibited purpose is one of the results sought to be achieved." In addition, although the list of purposes in the Convention Against Torture is "meant to be indicative rather than exhaustive, it is likely that not every purpose is sufficient to constitute torture, but only a purpose which has something in common with the purposes expressly listed. In cases where the evidence fails to show that an act was committed to achieve any particular purpose, the treatment may be deemed cruel or inhuman, but it will not constitute torture.

According to Nowak & Macarthur, the intent or purpose requirement for torture sets torture apart from other prohibited ill-treatment and, for some, should constitute the "dominant element distinguishing torture from cruel or inhuman treatment."

The Tribunal therefore considers that the term 'cruel, inhuman or degrading treatment or punishment' is to be interpreted so as to extend to the widest possible protection against abuse, whether physical or mental. As provided for in Article 24 of the Constitution in order to prevent detainees from being subjected to abuse.

# (d)Evidence on the responsibility of the individual and public official

The Convention Against Torture in Article 1 provides that to constitute torture, an act must be "inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." According to the Inter-American Report on Terrorism and Human Rights, in applying these standards, international bodies have held that for acts to constitute torture, the actions must be taken by government officials or with the consent or acquiescence of government officials.

For example, the African Commission on Human and Peoples' Rights relies upon the definition of torture in Article 1 of the Convention Against Torture in determining whether torture has occurred under the African Charter. In Zimbabwe Human Rights NGO Forum v. Zimbabwe No. 245/02, the Commission found insufficient evidence that acts taken by members of two non-state groups, the Zimbabwe ruling party, ZANU, and its military wing, the Zimbabwe Liberation War Veterans Association, had been taken with the consent or acquiescence of an official of the government of Zimbabwe." Finding no evidence of connivance between the State and the two groups, the Commission noted that in fact the government of Zimbabwe had "investigated allegations brought to its attention" regarding acts that otherwise would be deemed torture.

The Tribunal notes that under the provision of the 1995 Constitution and the Convention Against Torture, a public official need only awareness of the acts constituting torture to "acquiesce" in the torture committed by third parties. The Tribunal therefore emphasizes that the purpose of requiring awareness and not knowledge "is to make it clear that both actual knowledge and 'wilful blindness' fall within the definition of the term 'acquiescence.'" Government officials who inflict, instigate, consent to, or are aware of acts by third parties will meet the requirements of Article 1 of the Convention Against Torture."

Therefore, where abuse does occur, State Parties are also under an obligation to initiate a prompt, impartial and effective investigation in order to bring the perpetrators to justice as well as to afford redress to the victims.

From all indications, the respondent failed to uphold these standards and the Tribunal finds as a consequence that there was a violation of Article 24 of the Constitution.

Based on the complainant's testimony and the consistency of his witnesses' evidence, all the ingredients required to prove whether the Complainant's freedom from torture, or cruel inhuman or degrading treatment or punishment was violated by the respondent's agents/servants are satisfactorily proved in this case.

I therefore find on the balance of probabilities that the respondent's agents violated the complainant's right to freedom from torture or cruel, inhuman or degrading treatment or punishment. This issue is resolved in the affirmative.

# 2. Whether the Complainant's right to property was violated

The right to property is protected under Article 26 of the Constitution of the Republic of Uganda and Article 17 of the Universal Declaration of Human Rights 1949.

Article 17 (1) of the UDHR provides that everyone has a right to own property alone as well as in association with others. It further provides that no one shall be arbitrarily deprived of his property. Article 26 of the Constitution of the Republic of Uganda is in pari-materia with Article 17 of the UDHR except that the Constitution goes ahead to provide for exceptions and the procedures under which property can be lawfully taken away.

Specifically Article 26(2) is to the effect that no person shall be compulsorily deprived of property except if it is necessary for public use or in the interest of defence, public safety or public health, to mention but a few; and the compulsory taking of possession or acquisition is made under a law which provides for prompt payment of fair and adequate compensation prior to taking of possession or acquisition of property, and a right of access to a court of law by any person who has interest or a right over property. If property is taken away in disregard of the procedures provided for by this Article, property is said to be lawfully acquired or possessed thereby violating the right to property by the owner.

# In the case of James Rwanyarare Vs. Patrick Muhumuza & ors (2002) UHRC at 200, it was held that;

- 1. To prove that his right to property was violated, Dr. Rwanyarare had to prove ownership and or possession of the property at the material time. He also had to prove that he was unlawfully deprived of them. - 2. S.100 of the evidence Act cap 6 provides that whoever desires any court to give judgment to any legal right or liability dependent on the existence of facts that he asserts, must prove that those facts exist. Dr. Rwanyarare ought to have tendered receipts in proof of the money exchanged or brought Milton Obote foundation officials who bought the forex to prove that he had the money in issue. Dr. Rwanyarare had to prove ownership and possession of the property but he failed to discharge this burden of proof. The Tribunal was therefore not convinced that Dr. Rwanyarare had the property in question at Entebbe airport.

It is the Complainant's testimony that during his arrest, the police officers took his shoes and mobile phone before transporting him to Kawempe Police Station. CW2& CW3 did not make any mention of the shoes and phone the complainant alleges to have lost during arrest.

#### The Tribunal's decision on the Merits

At this point, the Tribunal is to determine whether the actions of the Respondents as described above constitute a violation of Articles 26 of the Constitution as alleged by the Complainant. As mentioned earlier, the matter proceeded exparte since the respondent never appeared before the tribunal despite the fact that he had been served and there was proof to that effect. Therefore, this matter was never defended although the written submissions by

Commission Counsel were prepared on behalf of the complainant and the same served and received by the respondent on 4<sup>th</sup> October, 2016. Therefore, the respondent has not made submissions on the merits despite having been requested to do so, on a number of occasions. The Tribunal will therefore examine the Complaint on the basis of the information at its disposal and must give due weight to the Complainant's allegations insofar as these have been adequately substantiated before this Tribunal.

Article 26(2) is to the effect that no person shall be compulsorily deprived of property except if it is necessary for public use or in the interest of defence, public safety or public health, to mention but a few; and the compulsory taking of possession or acquisition is made under a law which provides for prompt payment of fair and adequate compensation prior to taking of possession or acquisition of property, and a right of access to a court of law by any person who has interest or a right over property.

The Tribunal notes that the complainant had the burden to prove on a balance of probabilities that his property was taken during arrest by the respondent's agents either by producing receipts he acquired upon purchase of the said property or by calling in witnesses who saw when the property was being taken. The complainant also had a burden to prove that the property was taken away and never returned.

It is only the complainant's word and no other person's. No receipts, no eye witnesses. What is left unanswered is how the eye witnesses saw the complainant being shot at by the respondent's agents but never witnessed anything being taken away from him. The tribunal doubts the truthfulness of the complainant in regards to this allegation of deprivation of property. Sir Udo Udoma C. J in Kabenge Mpalanyi, Practice Manual Series by Kiapi at page $13$ , states;

"It was a well-known principal of law and practice that a man who swore the contrary of what he stated on a previous occasion was not worthy of belief".

The tribunal therefore finds that the complainant failed to adduce evidence to point out ownership of property since he neither had receipts nor witnesses who saw when the alleged property was being taken away. He has therefore failed to prove ownership or possession of the shoes and the mobile phone. Hence issue two is resolved in the Negative.

# 3. Whether the Respondent (Attorney General) is liable for the violation.

Article 119 (4) of the Constitution of Uganda provides that "the functions of the Attorney General shall include to represent Government in courts or any other legal proceedings to which the Government is a party".

In the case of Iwina vs. Arua Town Council (1997) HCB 28, the court that decided the case held as follows: "Once it is proved that the servant was an employee of the master, there is a presumption that he was in the course of employment. The burden then lies on the master to prove the contrary. I shall also apply the principle of law that was upheld in the case of Muwonge vs. Attorney General (1967) (EA) 17, in which the presiding judge the Hon. Justice Newbold P. held that: "The law is that even if a servant is acting deliberately, wrongfully, negligently or criminally, even if he is acting for his own benefit, nevertheless if what he did was in the manner of carrying out what he was employed to carry out, then his acts are for which the master is to be held liable." This is why the Attorney General was summoned to answer the allegations against the officers of Kotido Police Station where the complainant was detained and inhumanly treated and so were carrying out their official duties.

In the instant matter therefore, I find and hold that the Attorney General is vicariously liable for the aforementioned violation of the Complainant's right under consideration.

## 4. Whether the complainant is entitled to compensation:

Having held that the respondent's servants/agents violated the complainant's right to protection from cruel, inhuman and degrading treatment or punishment, it follows that he is entitled to compensation by the respondent.

Under Article 50 (1) of the constitution of the republic of Uganda 1995,

"Any person who claims that a fundamental or other right or freedom guaranteed under this constitution has been infringed or threatened is entitled to apply to a competent court for redress which may include compensation."

Further under Article 53(2) of the Constitution:

"The Commission may, if satisfied that there has been an infringement of a human right or freedom order-

(a) payment of compensation; or

(b) any other legal remedy or redress."

The acts of the police officer were cruel and inhuman in nature intended to inflict pain and suffering on the complainant. The complainant was a harmless civilian who had surrendered and rose up his hands to be taken into custody. Why then shoot? The Tribunal notes that these were acts of sheer sadists carried out with malice and with disrespect of the human race.

To let such perpetrators go free after committing such acts would be a sign of encouraging the state agents to carry out barbaric acts against innocent people. The police have a responsibility of keeping law and order and so why then come and shoot the human race it's meant to protect. The act by the respondent's agents was therefore unconstitutional.

### Decision of the Tribunal on the Merits

Based on the above, the Tribunal:

- Finds that the Respondent has violated Articles 24 and 44 of the 1995 i. Constitution of the Republic of Uganda; - Requests the Republic of Uganda to: ii. - a) Pay adequate compensation to the complainant named in the present Complaint in accordance with the Constitution for the rights violated; - b) Initiate an effective and impartial investigation into the circumstances of arrest and detention and the subsequent treatment of the Complainant. - c) Train security officers on relevant standards concerning adherence to custodial safeguards and the prohibition of torture.

### **ORDER**

- The complaint is allowed in part. $(I)$ - The respondent is ordered to pay the complainant a sum of **Ug. Shs** $(II)$ **9,000,000= (Nine Million Shillings)** as general damages for violation of his right to freedom from cruel, inhuman and degrading treatment. - The Ug. Shs 9,000,000= (Nine Million Shillings) will carry interest $(III)$ at court rate from the date hereof until payment in full.

Any party dissatisfied with this decision or any part thereof may appeal to the High Court of Uganda within 30 days from the date hereof.

So it is ordered.

May $\overline{13}$ DATED AT KAMPALA ON THIS... .2019

**SIGNED BY:**

DR. PATRICIA ACHAN OKIRIA (MRS) PRESIDING COMMISSIONER